§ 24-4.5-6-106 — Department's examination and investigatory authority; record retention; director's authority to control access to records; court order compelling compliance; confidentiality; costs; vendors

Indiana § 24-4.5-6-106

• Jurisdiction: Indiana
• Art. 4.5: UNIFORM CONSUMER CREDIT CODE
• Ch. 6: Administration

Text

(1) In administering this article and in
order to determine whether the provisions of this article are being
complied with by persons engaging in acts subject to this article, the
department may examine the records of persons and may make
investigations of persons as may be necessary to determine compliance.
Records subject to examination under this section include the
following:
(a) Training, operating, and policy manuals.
(b) Minutes of:
(i) management meetings; and
(ii) other meetings.
(c) Other records that the department determines are necessary to
perform its investigation or examination.
The department may also administer oaths or affirmations, subpoena
witnesses, and compel the attendance of witnesses, including directors,
executive officers, managers, principals, mortgage loan originators,
employees, independent contractors, agents, and customers of the
licensee, individual, or person subject to this article. The department
may also adduce evidence, and require the production of any matter
which is relevant to the investigation. The department shall determine
the sufficiency of the records maintained and whether the person has
made the required information reasonably available. The records
pertaining to any transaction subject to this article shall be retained for
two (2) years after making the final entry relating to the consumer
credit transaction, but in the case of a revolving loan account or
revolving charge account, the two (2) years is measured from the date
of each entry.
(2) The department's examination and investigatory authority under
this article includes the following:
(a) The authority to require a creditor to refund overcharges
resulting from the creditor's noncompliance with the terms of
consumer credit sales, consumer leases, or consumer loans.
(b) The authority to require a creditor to comply with the
prepayment penalty provisions set forth in IC 24-4.5-3-209.
(c) The authority to investigate complaints filed with the
department by debtors.
(3) If the department:
(a) investigates; or
(b) examines the books and records of;
a person that is subject to IC 24-4.5-6-201, IC 24-4.5-6-202, and IC 24-4.5-6-203, the person shall pay all reasonably incurred costs of the
investigation or examination in accordance with the fee schedule
adopted by the department under IC 28-11-3-5. However, the person is
liable for the costs of an investigation or examination under this
subsection only to the extent that the costs exceed the amount of the
filing fees paid most recently under IC 24-4.5-6-203. Any costs
required to be paid under this section shall be paid not later than sixty
(60) days after the person receives a notice from the department of the
costs being assessed. The department may impose a fee, in an amount
fixed by the department under IC 28-11-3-5, for each day that the
assessed costs are not paid, beginning on the first day after the sixty
(60) day period described in this subsection.
(4) The department shall be given free access to the records
wherever located. In making any examination or investigation
authorized by this article, the director may control access to any
documents and records of the licensee or person under examination or
investigation. The director may take possession of the documents and
records or place a person in exclusive charge of the documents and
records in the place where the documents are usually kept. During the
period of control, the licensee or person may not remove or attempt to
remove any of the documents and records except under a court order
or with the consent of the director. Unless the director has reasonable
grounds to believe the documents or records of the licensee or person
have been, or are, at risk of being altered or destroyed for purposes of
concealing a violation of this article, the licensee or person being
examined or investigated is entitled to access to the documents or
records as necessary to conduct the licensee's or person's ordinary
business affairs. If the person's records are located outside Indiana, the
records shall be made available to the department at a convenient
location within Indiana, or the person shall pay the reasonable and
necessary expenses for the department or its representative to examine
them where they are maintained. The department may designate
comparable officials of the state in which the records are located to
inspect them on behalf of the department.
(5) Upon a person's failure without lawful excuse to obey a
subpoena or to give testimony and upon reasonable notice to all
affected persons, the department may apply to any civil court with
jurisdiction for an order compelling compliance.
(6) The department shall not make public the name or identity of a
person whose acts or conduct the department investigates pursuant to
this section or the facts disclosed in the investigation, but this
subsection does not apply to disclosures in actions or enforcement
proceedings pursuant to this article.
(7) To discover violations of this article or to secure information
necessary for the enforcement of this article, the department may
investigate any:
(a) licensee or registrant; or
(b) person that the department suspects to be operating:
(i) without a license or registration, when a license or
registration is required under this article; or
(ii) otherwise in violation of this article.
The department has all investigatory and enforcement authority under
this article that the department has under IC 28-11 with respect to
financial institutions. If the department conducts an investigation under
this section, the licensee, registrant, or other person investigated shall
pay all reasonably incurred costs of the investigation in accordance
with the fee schedule adopted under IC 28-11-3-5. Any costs required
to be paid under this section shall be paid not later than sixty (60) days
after the person receives a notice from the department of the costs
being assessed. The department may impose a fee, in an amount fixed
by the department under IC 28-11-3-5, for each day that the assessed
costs are not paid, beginning on the first day after the sixty (60) day
period described in this subsection.
(8) If a creditor contracts with an outside vendor to provide a service
that would otherwise be undertaken internally by the creditor and be
subject to the department's routine examination procedures, the person
that provides the service to the creditor shall, at the request of the
director, submit to an examination by the department. If the director
determines that an examination under this subsection is necessary or
desirable, the examination may be made at the expense of the person
to be examined. If the person to be examined under this subsection
refuses to permit the examination to be made, the director may order
any creditor that is licensed by the department and that receives
services from the person refusing the examination to:
(a) discontinue receiving one (1) or more services from the
person; or
(b) otherwise cease conducting business with the person.
Formerly: Acts 1971, P.L.366, SEC.7. As amended by
P.L.14-1992, SEC.48; P.L.122-1994, SEC.34; P.L.45-1995, SEC.16;
P.L.10-2006, SEC.9 and P.L.57-2006, SEC.9; P.L.213-2007, SEC.15;
P.L.217-2007, SEC.14; P.L.35-2010, SEC.66; P.L.27-2012, SEC.26;
P.L.216-2013, SEC.12; P.L.186-2015, SEC.22; P.L.69-2018,
SEC.24.